R v. Sinclair: A Case Analysis

On October 8, 2010, the Supreme Court of Canada (SCC) released the highly anticipated decision in the matter of R v. Sinclair 2010 SCC 35. In that case, Mr. Sinclair, during the course of a police interrogation implicated himself for murder. He also made incriminating statements to an undercover police officer who had been placed in a cell with him and later re-enacted the whole scenario at the crime scene for the police. During the course of the interview Sinclair asked on several occasions to speak to his legal counsel and or have them present during the interview. He was informed that he was not allowed to have his lawyer present during questioning and subsequently was denied access to speak to legal counsel over the phone. Sinclair’s only contact with a lawyer came when he was first arrested and approximately two hours into his interview. Both conversations lasted for approximately three minutes.

I, as counsel for Mr. Sinclair, put forward the argument that s.10(b) of the Charter of Rights and Freedoms imposes a duty on the police to discontinue questioning a detainee who has exercised the right to counsel when the detainee indicates a desire to speak with counsel again. It was further argued that s.10(b) requires the police to respect a detainee’s request to have counsel present during a custodial interrogation. These arguments were rejected at trial and by a unanimous British Columbia Court of Appeal (BCCA). A bare majority (5-4) of the Supreme Court of Canada (McLachlin C.J., Deschamps, Charron, Rothstein and Cromwell JJ.) agreed with the BCCA and stating that s.10(b) if the Charter does not mandate the presence of defence counsel throughout a custodial interrogation. In essence, the SCC rejected the rule adopted by the US Supreme Court in Miranda v. Arizona, 384 U.S. 136 (1966). The US Supreme Court has held that you are allowed to have a lawyer present during interrogations by government agents such as the police. Furthermore, it was held by the SCC that a request to consult counsel during the interview is not sufficient to re-trigger the s.10(b) right. The SCC majority held that the right will only be re-triggered when an objectively observable change in circumstances suggest that reconsultation with counsel is necessary in order for the detainee to have the information relevant to choosing whether or not to cooperate with the police investigation. A non-exhaustive list of situations where a second consultation with a lawyer might be required includes new procedures involving detainees (line ups & polygraphs), change in jeopardy (change in the nature of charges) and reason to question the detainee’s understanding of his s.10(b) right.

The minority decision of the SCC (Lebel, Fish and Abella JJ) state that they would allow the appeal on the above grounds on the basis that the detainee is arguably in the power of the police and the purpose of s.10(b) is to restore a power balance between the detainee and the police in the coercive atmosphere of the police investigation. The minority believe that the purpose of s.10(b) is to protect the accused and not to merely inform him or her of their legal rights. Justice Ian Binnie, who has his own dissenting judgment states that the purpose of s.10(b) is to be afforded meaningful legal assistance. Binnie notes that “it cannot reasonably be said….that the 360 seconds of legal advice [Sinclair] received in two initial phone calls before the police began their work was enough to exhaust his s.10(b) guarantee.” Binnie further stated that objective circumstances that give rise to a need to talk to legal counsel include but are not limited to the extent if prior contact wih counsel, the length of the interview at the time of the request, extent of other information (true or false) provided to the police, whether an issue of a legal nature has arisen in the course of the interrogation. It is important to note that Binnie agreed with the majority by declining to adopt the submission that s.10(b) requires the presence of counsel during the interrogation.

I believe that the Supreme Court of Canada has made it more difficult for defence counsel to do their job. Defence lawyers across the country will have to advise their clients to put their head down and say nothing, as otherwise they risk incriminating themselves as they will be at the mercy of a clever police officer. Along with the decisions in Singh, Oickle and Hebert the country’s top court has made it clear that the power during interrogations clearly rests with the police. Unfortunately, this could result in a significant amount of false confessions which could lead to false imprisonments and wrongful convictions. I believe that it is absolutely imperative that individuals in police custody have the right to have legal counsel present during investigations. Furthermore, accused individuals should have a continuous right to access legal counsel. I firmly believe that the courts should re-examine this issue and hopefully an appropriate balance between the rights of individuals and police powers could be struck.